When the criminal justice system and the offender with mental disorder collide, it is often a train wreck. The criminal justice system is a system comprised of systemic order, expectations, and rules whereas offenders with mental disorders—by virtue of their mental disorder—are more often scattered, unpredictable and incapable of fitting into such a system. The approach of the defense lawyer when helping a person with a mental disorder must change in order to provide complete, and constitutionally effective, representation.
A complete understanding of competency and insanity laws, in addition to diversionary court programs, is necessary to effective representation of persons with mental illness. Every practitioner should keep abreast of legislative changes to the laws pertaining to competency and insanity. Another invaluable resource is Texas Criminal Procedure and the Offender with Mental Illness (5th Ed. 2016). This text is available for download online at http://namitexas.org/wp-content/uploads/sites/12/2014/12/2016-NAMI-Texas-Shannon-book-with-cover.pdf.
II. Mental Illness
At the outset it is important to understand what is meant by the term “mental illness” in the context of the criminal justice system. Certainly, mental illness includes neurological brain disorders such as schizophrenia, bipolar disorder, clinical depression, and schizoaffective disorder. After all, the brain is an organ of the body, and like other organs of the body, the brain can become unwell. On the other hand, under the state’s civil commitment laws, the Texas Mental Health Code defines “mental illness” somewhat more broadly than a mere listing of identifiable, neurobiological brain disorders:
“Mental illness” means an illness, disease, or condition, other than epilepsy, dementia, substance abuse, or intellectual disability, that:
- Substantially impairs a person’s thought, perception of reality, emotional process, or judgment; or
- Grossly impairs behavior as determined by recent disturbed behavior.
Tex. Health & Safety Code Ann. 571.003(14); Shannon & Benson, Texas Criminal Procedure and the Offender with Mental Illness, p. 12–13 (5th Ed. 2016). Of specific note in the definition of the phrase “mental illness” in the Texas Health and Safety Code is the exclusion of substance abuse as a mental disorder or impairment; conversely, the DSM-5 treats what it terms “substance use disorder” as a mental illness.
According to the DSM-5, “[a] mental disorder is a syndrome characterized by clinically significant disturbance in an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress in social, occupational, or other important activities. An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder. Socially deviant behavior (e.g., political, religious, or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results from a dysfunction in the individual, as described above” [emphasis added].
Modern research efforts relating to the causes of mental illness indicate that mental illnesses are the result of neurobiological disease, not of weaknesses in character or poor parenting. Shannon & Benson, Texas Criminal Procedure and the Offender with Mental Illness at 15. Though presently mental illness is not curable, mental illnesses is a treatable disease. It is with this frame of reference and focus that all participants in the criminal justice system should view defendants with mental illness.
It is well-established that an incompetent criminal defendant cannot be put to trial without violating due process. Medina v. California, 505 U.S. 437, 453 (1992). The requirement of competency also applies at a proceeding to adjudicate guilt, Marbut v. State, 76 S.W.3d 742, 746 (Tex. App.—Waco 2002, pet. ref’d), and to pleas of guilty or nolo contendere, Tex. Code Crim. Proc. Art. 26.13(b).
A. Informal Inquiry
On suggestion that the defendant may be incompetent, from whatever source, the trial judge is required to make “informal inquiry” whether there is evidence that would support a finding that the defendant may be incompetent to stand trial. Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App. 2001) (“competency inquiry”). The trial court has broad discretion concerning the nature and intensity of this inquiry. It would be considerably unwise for a trial court to dismiss any suggestion of incompetency.
Article 46B is somewhat unclear as to the basis on which a competency situation progresses from an informal inquiry into a formal determination of competency. Dix & Schmolesky, 43 Texas Practice: Criminal Practice and Procedure 31:36 (2011). However, the best practice is to order a competency examination and trial if an agreement on (in)competency cannot be reached. The standard from Sisco v. State is controlling for purposes of determining whether evidence exists to support a finding of incompetency: The judge is to ignore any evidence indicating competency and consider only that indicating incompetency. 599 S.W.2d 607 (Tex. Crim. App. 1980) (panel op.).
B. Competency Standard
Unlike insanity, discussed supra, competency to stand trial concerns the accused’s mental condition at the time of trial. The constitutional standard for competency to stand trial asks whether the defendant has a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and whether he has a rational as well as factual understanding of the proceedings against him. Dusky v. United State, 362 U.S. 402 (1960). Due process also mandates state procedures that are adequate to assure that incompetent defendants are not put to trial. Pate v. Robinson, 383 U.S. 375 (1966). To that end, the Texas Legislature has codified the constitutional standard for competency to stand trial and has elaborately described the circumstances that require, and procedures for making, a determination of whether a defendant is competent to stand trial. Tex. Code Crim. Proc. Art. 46B, et. seq.
The legislative criteria for competency contemplates a defendant who is at least minimally able to interact with trial counsel in a reasonable and rational way in formulating decisions on how to best pursue the defense. During a competency evaluation an expert shall consider, among other enumerated factors, the defendant’s capacity to:
- Rationally understand the charges against the defendant and the potential consequences of the pending criminal proceedings;
- Disclose to counsel pertinent facts, events, and states of mind;
- Engage in a reasoned choice of legal strategies and options;
- Understand the adversarial nature of criminal proceedings;
- Exhibit appropriate courtroom behavior; and
Tex. Code Crim. Proc. Art. 46B.024. Unless there is good cause shown, an expert who is ordered to conduct a competency examination shall provide the report to all parties no later than 30 days after the date on which the expert was ordered to examine the defendant and prepare the report. Tex. Code Crim. Proc. Art. 46B.026.
A defendant is entitled to representation by counsel, and appointed counsel if necessary, “before any court-ordered competency evaluation.” A defendant is afforded the same right to counsel “during any proceeding at which it is suggested that the defendant may be incompetent to stand trial.” Tex. Code Crim. Proc. 46B.007. The trial court must provide an expert of the defendant’s choice a “reasonable opportunity to examine the defendant,” if this is sought by timely request. Tex. Code Crim. Proc. Art. 46B.021(f).
C. The Competency Trial
Federal constitutional law does not require that competency issues be answered by a jury. Townsend v. State, 427 S.W.2d 55–58 (Tex. Crim. App. 1968). However, where there is a jury trial on competency, the decision of the jury is final and controlling. Ex Parte Morgan, 403 S.W.2d 803, 804 (Tex. Crim. App. 1966). Neither the State nor the defendant is entitled to make an interlocutory appeal relating to a determination of incompetency under Article 46B.005. Tex. Code Crim. Proc. Art. 46B.011.
Subchapter C of Chapter 46B addresses the incompetency trial process. A jury trial is required on the issue of competency upon the request of either party or on the motion of the court. Tex. Code Crim. Proc. 46B.051. For the most part, the rules governing a competency trial are the same for a jury trial on the merits. The Texas Rules of Evidence apply. Tex. Code Crim. Proc. Art. 46B.008. A defendant is entitled to counsel, and if indigent, to appointed counsel. See supra, 46B.006. The Court of Criminal Appeals has also assumed that provisions for change of venue as articulated in the Code of Criminal Procedure apply to competency trials. Penry v. State, 903 S.W.2d 715, 727 (Tex. Crim. App. 1995) (per curium). A unanimous verdict is required. Defense counsel is permitted to question jurors on whether they have any views of the defendant’s guilt. Brandon v. State, 599 S.W.2d 567, 572 (Tex. Crim. App. 1979), vacated and remanded on other grounds, 453 U.S. 902, 101 S.Ct. 3134, 69 L.Ed.2d 988 (1981). However, the number of preemptory challenges follows the civil rule. There is a presumption of competency, and the burden of proof is a preponderance of the evidence rather than beyond a reasonable doubt. Tex. Code Crim. Proc. Art. 46B.003.
Of interesting note, under Manning v. State, 773 S.W.2d 568 (Tex. Crim. App. 1989) (per curium), adopting Manning v. State, 766 S.W.2d 551 (Tex. App.—Dallas 1989), defense counsel can be called by the State in support of its claim that the defendant is competent over a claim by the defendant of attorney-client privilege as long as: (1) the attorney does not reveal the contents of any confidential communications to the attorney by the defendant; and (2) the attorney must testify only to facts and conclusions based on observations and conversations with the defendant that other persons not representing the defendant could have made or had.
D. Procedures After Competency Trial
If, after a jury trial on the issue of competency, a defendant is determined to be competent a separate jury is required for the trial on the merits of the criminal case. Tex. Code Crim. Proc. Art. 46B.053.
If, however, a defendant is determined to be incompetent then the court has basically two options:
(1) release the defendant on bail or
(2) commit the defendant to a mental health facility or residential care facility.
There is an option to commit the defendant to a jail-based competency restoration program (JBCR). This sounds like an excellent option to avoid the languishing waits in county jails for a bed at the state hospital. However, it is not yet a feasible option. S.B. 1475, 83rd Legislature, Regular Session, 2013, amended Article 46B.090 of the Texas Code of Criminal Procedure to establish a JBCR Pilot Program. As with many things in the government, there have been substantial delays in actually developing and implementing such a program. The workgroup met a couple of times and has published its latest report as of June 1, 2017. As of the submission of this paper, the author is unaware of any JBCR programs in this state.
Release on bail, after a determination of incompetency, is permissible if the defendant is ordered to participate in an outpatient program for not more than 120 days. A felony defendant may be released on bail and required to participate in an outpatient treatment program if:
- The court determines the defendant is not a danger to others and may be safely treated on an outpatient basis;
- The court determines an appropriate outpatient treatment program is available for the defendant;
- The court receives and approves a comprehensive plan for the outpatient treatment; and
- The court finds that the treatment proposed by the plan will be available to and will be provided to the defendant.
Tex. Code Crim. Proc. Art. 46B.072(a)(1). In order to have any realistic chance at release on bail after a determination of incompetency, a tremendous amount of work needs to be conducted before the competency trial. Finding a treatment facility and obtaining a comprehensive treatment plan before the competency trial is a must. Defense counsel must be prepared to offer to the trial court—as soon as the finding of incompetency has been made—evidence in accordance with article 46B.072(a)(1) for any realistic chance for the defendant to be released on bail. This is akin to preparing for the punishment phase in the trial on the merits. The preparation must occur before the trial; it is too late to start preparing when the jury is deliberating, and success is not achieved on an impromptu basis.
Where there has been a finding of incompetency, the trial court shall commit a defendant to a mental health facility, residential care facility, or JBCR program for a period of not more than 60 days if the offense is a misdemeanor and not more than 120 days if the offense if a felony. Tex. Code Crim. Proc. Art. 46B.073. If the defendant is charged with an offense under article 17.032(a) of the Code of Criminal Procedure, then the Court shall enter an order committing the defendant to a maximum-security unit for competency restoration. Id. The Court may grant one 60-day extension under article 46B.080 upon request of the head of a facility or program provider for a defendant who has not regained competency during the initial restoration period. After an initial restoration period and an extension have been ordered, any subsequent orders for treatment must be issued under Subchapter E or F (both dealing with civil commitment).
The court is required to notify the state and defense counsel of the defendant’s return not later than the next business day following the defendant’s return from the state hospital. Within three days of the date of said notice, defense counsel shall meet and confer with the defendant to evaluate whether there is any suggestion that the defendant has not yet regained competency. Tex. Code Crim. Proc. Art. 46B.084.
When the defendant returns to the court after hospitalization, the court must make a determination with regard to the defendant’s competency to stand trial. The determination may be made on the most recent report filed under Article 46B.079(c) and other medical and personal history information of the defendant. Importantly, Article 46B.084(a-1) identifies the procedure for objecting to a report filed under Article 46B.079(c). If a party objects under Subsection (a-1), the issue shall be set for a hearing. Tex. Code Crim. Proc. Art. 46B.084(b). The hearing is before the court—except that on motion by the defendant, the defense counsel, the prosecuting attorney, or the court, the hearing shall be held before a jury. Id.
If there is a finding that the defendant is unlikely to be restored to competency in the foreseeable future the Court shall either release the defendant on bail (a highly unlikely scenario) or proceed under Subchapter E or F, both dealing with civil commitment. See Tex. Code Crim. Proc. Art. 46B.071.
If a defendant is ultimately convicted of a criminal offense, the court must credit the defendant’s sentence for any time that he has been confined in a mental health facility, residential care facility, or jail pending trial. Tex. Code Crim. Proc. Art. 46B.009.
It is often impossible for the offender with mental illness to get out of the system. All too often lawyers and courts—the system—is in a rush to hurry and plead the person upon return from the State Hospital. The facts may dictate no other option sometimes. However, consider for a moment what that does to the offender with mental illness. A sentence of incarceration may brand a mentally ill offender as a criminal convict, thus preventing them from obtaining certain helpful governmental services and/or housing. A term of community supervision appears a better option at first—until the stark realization that the “newly competent” offender will be required to adhere to a rigid set of rules while at the same time being required to complete unfamiliar classes. Under such circumstances, community supervision will not last long before adjudication or revocation. Temporarily restored competency for court purposes does not eliminate the mental health issue(s) that will certainly follow the client.
It is worth noting that perhaps due to crowding in the state hospitals or the rapidity with which some courts prefer the docket to be moved (or some combination of the two), it is not uncommon to find your newly “competent” client returned to the county jail heavily medicated. In such situations, it be can difficult, if not impossible, to determine whether your client has been restored to competency or is merely a heavily sedated version of their former self. Be mindful that in such situations, a new problem presents itself, insofar as medication can interfere with your client’s ability to knowingly and voluntarily enter into any sort of plea agreement.
Additionally, there is no prohibition to a subsequent suggestion of incompetency if circumstances so warrant. If a formal competency trial results in a finding of competency, the trial court is not obligated to revisit the issue of competency absent a material change of circumstances suggesting that the defendant’s mental status has deteriorated. Turner v. State, 422 S.W.3d 676, 693 (Tex. Crim. App. 2014, reh’g denied) (internal citations omitted). However, especially when there has been a suggestion of incompetency but no formal adjudication of the issue, due process requires the trial court to remain ever vigilant for changes in circumstances that would make a formal adjudication appropriate. Id. (emphasis added). The latter was precisely the factual situation in Turner.
Mr. Turner was initially evaluated for competency and determined to be competent. The competency reports indicate that not all of the factors in 46B.024 were considered in the evaluation, and the evaluation further noted some concerns that Turner suffered from a paranoid disorder and that Turner was experiencing delusions. Id. at 693. Turner’s lawyers—his first lawyer withdrew due to an untenable attorney-client relationship and another was appointed—expressed concerns to the trial court over their client’s paranoia and its impact on their representation at various points in their representation. Prior to jury selection and again during jury selection, Turner’s lawyers filed a request for a competency examination. The trial court refused to conduct a formal competency hearing, but did order an evaluation of Turner to determine whether he was able to rationally assist his lawyers in the defense of his case. The evaluation made no determination on Turner’s competency but did suggest no significant changes in his functioning since he was initially evaluated. The trial court denied the motion for a formal competency evaluation.
In abating the appeal and remanding back to the trial court for a competency trial, the Court of Criminal Appeals noted that there was no adjudication of the competency issue in this case following any of the evaluations. Id. at 694. Thus, there was no prior judicial competency determination to justify a requirement of a change in circumstances. Id. at 695. In Turner, there was at least some evidence from which it may be rationally inferred not only (1) that the defendant suffers some degree of debilitating mental illness, and that (2) he obstinately refuses to cooperate with counsel to his own apparent detriment, but also that (3) his mental illness is what fuels his obstinacy. Id. at 696. Turner is a necessary case for defense counsel to read and have on hand when representing an obstinate client with mental illness.
Insanity is an affirmative defense to prosecution codified in section 8.01 of the Penal Code:
(a) It is an affirmative defense to prosecution that at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.
(b) The term “mental disease or defect” does not include an abnormality manifested by repeated criminal or otherwise antisocial conduct.
“Wrong” in the context of 8.01 means “illegal.” Thus, the question for deciding insanity is this: Does the defendant factually know that society considers this conduct against the law, even though the defendant, due to his mental disease or defect, may think that the conduct is morally justified?” Ruffin v. State, 270 S.W.3d 586, 592 (Tex. Crim. App. 2008).
Article 46C.153 instructs that the judge or jury shall determine that a defendant is not guilty by reason of insanity if: (1) the prosecution has established beyond a reasonable doubt that the alleged conduct constituting the offense was committed; and (2) the defense has established by a preponderance of the evidence that the defendant was insane at the time of the alleged conduct. Subsection (b) provides that the parties may, with consent of the judge, agree to both: (1) dismissal of the indictment or information on the ground that the defendant was insane; and (2) entry of a judgment of dismissal due to the defendant’s insanity.
Since insanity is an affirmative defense it must be alleged and proved by a preponderance of the evidence at trial. Tex. Pen. Code 2.04. There is an exception to this rule, though. If a defendant has previously been adjudicated insane and such adjudication has not been vacated, then there is a presumption that the insanity continues and the burden is on the state to prove, beyond a reasonable doubt, that the defendant was sane at the time of the alleged offense. Riley v. State, 830 S.W.2d 584 (Tex. Crim. App. 1992).
Properly admitted opinion testimony of lay witnesses is sufficient to support a finding of insanity. Pacheco v. State, 757 S.W.2d 729 (Tex. Crim. App. 1988). And an expert witness cannot give an ultimate opinion on (in)sanity because the insanity issue is not strictly legal. Were it otherwise, the issue would be tried in hospitals rather than the courts. Graham v. State, 566 S.W.2d 941, 949 (Tex. Crim. App. 1978); see also Schuessler v. State, 719 S.W.2d 320, 329 (Tex. Crim. App. 1986), overruled on other grounds, Meraz v. State, 785 S.W.2d 146 (Tex. Crim. App. 1990) (“if a defendant’s evidence is undisputed as to the presence of a mental disease or defect, even if it established medical insanity, it would not necessarily establish legal insanity”).
Chapter 46C addresses the procedures that are to be used in cases where insanity is an issue. 46C.051 requires the defense to file a formal notice of intent to raise the insanity defense. This notice must be served on the State and must be filed at least 20 days prior to trial, or if before the 20-day period the court sets a pretrial hearing, the defendant shall give notice at the hearing. If the notice is not timely filed, then evidence on insanity is not admissible unless the court finds good cause for the failure to give notice. Tex. Code Crim. Proc. Art. 46C.052.
Defense counsel is urged to file such a notice if it is reasonably believed that the defense of insanity will be used. However, be aware that if notice of intention to raise the insanity defense is filed under Article 46C.051, the court may, on its own motion or motion by the defendant, the defendant’s counsel, or the attorney representing the state, appoint one or more disinterested experts to: (1) examine the defendant with regard to the insanity defense; and (2) testify as to the issue of insanity at any trial or hearing involving that issue. Tex. Code Crim. Proc. Art. 46C.101. Further, the court can compel a defendant to submit to such an examination and can even order the defendant confined for a reasonable period not to exceed 21 days to submit to the examination. Tex. Code Crim. Proc. Art. 46C.104.
According to Article 46C.154, the jury cannot be informed by the state, defense, or the court of the consequences to the defendant if a verdict of not guilty by reason of insanity is returned. This is unfair, plain and simple. “The absurdity and injustice of this provision is that the jurors will probably not know about the extensive statutory provisions regarding the mandatory procedures to be followed by the court upon the acquittal of a defendant by reason of insanity, including provisions to protect adequately the safety of the community, and may believe—quite wrongly—that a defendant acquitted by reason of insanity is free to walk out of the courthouse at the end of the trial.” Shannon & Benson, Texas Criminal Procedure and the Offender with Mental Illness p. 147.
A. Competency Before Insanity
A defendant must be evaluated for competency prior to being evaluated for insanity at the time of the offense. The focus of competency, see supra, is present ability whereas the focus of insanity is at the time of the offense. The same examiner appointed to evaluate a defendant’s competency to stand trial may also be appointed to examine the defendant with regard to sanity. However, separate written reports must be filed on the two matters. Tex. Code Crim. Proc. Art. 46C.103(a). An examiner must first evaluate a defendant for competency and may not evaluate a defendant for insanity if the examiner’s opinion is that the defendant is incompetent. Tex. Code Crim. Proc. Art. 46C.103(b).
Contrary to what a jury might believe, the return of a verdict of not guilty by reason of insanity is not the end of the proceedings. Upon such a verdict the court shall immediately determine whether the offense of which the person was acquitted involved conduct that: (1) caused serious bodily injury to another person; (2) placed another person in imminent danger of serious bodily injury; or (3) consisted of a threat of serious bodily injury to another person through the use of a deadly weapon. Tex. Code Crim. Proc. Art. 46C.157. If the court makes a finding under Article 46C.157, then the court retains jurisdiction over the person until either the court discharges the person and terminates its jurisdiction—or the cumulative total period of institutionalization and outpatient or community-based treatment and supervision under the court’s jurisdiction equals the maximum term provided by law for the offense of which the person was acquitted by reason of insanity and the court’s jurisdiction is automatically terminated. Tex. Code Crim. Proc. Art. 46C.158. If the court does not so find, then the court shall proceed under subchapter E (civil commitment). Tex. Code Crim. Proc. Art. 46C.159. Pending further proceedings after a finding of not guilty by reason of insanity, the court can order the defendant detained in jail or any other suitable place for a period not to exceed 14 days. Tex. Code Crim. Proc. Art. 46C.160.
Additionally, if a person is found not guilty by reason of insanity, the verdict is an acquittal; however, the person cannot have the record expunged under Chapter 55. Tex. Code Crim. Proc. Art. 46C.155.
C. If No Insanity, Then Diminished Capacity?
There are mentally ill defendants who are competent to proceed and not insane at the time of the commission of the offense. These defendants fall in a gray area as they cannot be labeled as incompetent or insane, but still have a mental illness that affects perception and/or functioning. The question is what can be done to defend these cases where incompetency and insanity cannot be raised.
There is no statutorily prescribed diminished-capacity defense due to mental illness in Texas. However, it is possible to introduce evidence to negate the mens rea element of the charged crime. This obviously includes the ability to introduce evidence of mental illness and how said mental illness affects or impacts on the formation of intent. The standard for admission of such evidence is relevance and the accused’s constitutional due process right to present a defense. Be aware that no jury instruction will be provided, however, given that inability to formulate the necessary mens rea is not a statutory defense.
V. Mental Health Court
Jail and/or prison are particularly bad places to be for the mentally ill. Solitary confinement is a reality for many inmates with mental illness. In September 2017, Texas quietly eliminated the use of solitary confinement for punitive reasons; solitary confinement still remains an option in Texas prisons for “administrative segregation” (gang affiliation, etc.). This is part of a larger, national shift towards reform or elimination (in some states) of the use of solitary confinement in prisons. The conditions of incarceration, and certainly solitary confinement, only serve to exacerbate the symptoms of a mentally ill inmate or provoke recurrence. Inmates with mental illness are much more likely to be injured in prison fights. The Department of Justice reported that 20% of inmates with mental illness were injured in jailhouse fights compared to 10% of inmates without mental illness. In local jails, inmates with mental illness are three times as likely to be injured. Http://www.pbs.org/newshour/health/numbers-mental-illness-behind-bars (May 15, 2014) (last visited 10/30/2017). To be clear, the corrections system is not designed nor is it equipped to provide mental health treatment and/or services. There can be no doubt that some solution other than warehousing mentally ill people is necessary—and certainly more humane and civil.
In that vein, some counties have created mental health court programs for adult and/or juvenile offenders. Mental health courts are specialty diversionary courts directed at adults and juveniles with severe mental illness. The court is created under the authority of Section 76.011 of the Government Code. It is important to be familiar with the parameters and admissions criteria for the mental health court as it provides a long-overdue positive alternative to incarceration.
Mitigating evidence is not evidence that excuses certain conduct but rather evidence that would help lessen any potential punishment received based on the conduct. Defense lawyers have a constitutional duty to clients to fully investigate and present mitigating evidence during the punishment phase of a criminal proceeding. Williams v. Taylor, 529 U.S. 362 (2000); Wiggins v. Smith, 539 U.S. 510 (2003). In January 2011, the Texas State Bar Board of Directors adopted the “Performance Guidelines for Non-Capital Criminal Defense Representation” (hereinafter “Guidelines”). Performance Guidelines for Non-Capital Criminal Defense Representation, available at https://www.texasbar.com/AM/Template.cfm?Section=Texas_Bar_Journal&Template=/CM/ContentDisplay.cfm&ContentID=14703. “The guidelines were drafted by the State Bar Committee on Legal Service to the Poor in Criminal Matters to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of citizens accused of crime.” Blackburn, J., and Marsh, A., The New Performance Guidelines in Criminal Cases: A Step Forward for Texas Criminal Justice, 74 Texas Bar Journal 7 (July 2011). “They represent an effort to ‘hold the line’ for criminal defense practitioners against a host of financial and political pressures.” Id. According to Guideline 4.1, B.9
Counsel should consider whether expert or investigative assistance, including consultation and testimony, is necessary or appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of experts when it is necessary or appropriate to:
a. The preparation of the defense;
b. Adequate understanding of the prosecution’s case;
c. Rebut the prosecution’s case or provide evidence to establish an available defense;
d. Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and
e. Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense.
We all have our own unique experiences—both good and bad—that mold and shape us as people and the decisions we make. We all have something mitigating in our past. The amount and strength of mitigating evidence for clients with past or present mental health issues, however, is often abundant. And mental health problems are actually very common. According to www.mentalhealth.gov, in 2014:
- One in five American adults experienced a mental health issue;
- One in 10 young people experienced a period of major depression; and
- One in 25 Americans lived with a serious mental illness, such as schizophrenia, bipolar disorder, or major depression.
The vast majority of people with mental health problems are no more likely to be violent than anyone else. Mentalhealth.gov (last visited 10/30/17). People with mental health issues often have some sort of traumatic life experience and/or a family history of mental health problems. Mentally ill people are also grossly disproportionately victimized by violent crime. Id. Such evidence can be challenging to obtain directly from the client for many reasons. Thus, it is better practice to obtain medical records directly from providers via subpoena and provide those records directly to the defense expert, if any. In the author’s experience, it is extremely helpful to have an expert to help fully explain to the jury mental health issues and the impact those issues have had on the client’s life.
The mentally ill client is among the most challenging type of client to effectively represent. It can be discouraging and frustrating to represent a mentally ill client who repeatedly asks the same questions, completely shuts down, and/or becomes agitated at seemingly insignificant occurrences. The mentally ill client takes more of the lawyer’s time, patience, compassion, and understanding. For people with mental illnesses—who often face inordinate poverty, unemployment, crime, victimization, family breakdown, homelessness, substance use, physical health problems, and stigma—contact with the criminal justice system can exacerbate prevailing social marginalization, disrupt treatment and linkage to service systems, or represent the first occasion for treatment. Prins, Seth J., “The Prevalence of Mental Illness in U.S. State Prisons: A Systematic Review,” Psychiatr Serv. (online at http://ncbi.nlm.nih.gov/pmc/articles/PMC4182175). As defense lawyers we are charged with protecting the constitutional rights of all those whom we represent. It is our job to speak and advocate for those who cannot do so themselves even when to do so is challenging.